U.S. v. Tarazon-Silva

• Decision Date: 07 April 1997
• Docket Number: No. EP-96-CR-656-DB.,EP-96-CR-656-DB.
• Parties: UNITED STATES of America v. Manuel Jose TARAZON-SILVA and Ricardo Belkotosky-Gutierrez.
• Court: U.S. District Court — Western District of Texas

960 F.Supp. 1152

UNITED STATES of America v. Manuel Jose TARAZON-SILVA and Ricardo Belkotosky-Gutierrez.

No. EP-96-CR-656-DB.

United States District Court, W.D. Texas, El Paso Division.

April 7, 1997.

Juanita Fielden, Margaret Leachman, Asst. U.S. Attys., El Paso, TX, for plaintiff.

Robert Ramos, Dick Deguerin, El Paso, TX, for defendants.

MEMORANDUM OPINION AND ORDER

BRIONES, District Judge.

On this day, the Court considered Defendants Manuel Jose Tarazon-Silva and Ricardo Belkotosky-Gutierrez' Motion to Suppress Evidence, filed on January 21, 1997, in the above-captioned cause. The Government's Response was filed on February 13, 1997. On Tuesday, March 4, 1997, the Court held a hearing on the Motion. At the conclusion of the hearing, the Court directed the parties to file post-hearing arguments within ten days, which they did on March 14, 1997. In addition, both sides filed a Reply to their respective post-hearing arguments on March 21, 1997. After due consideration, the Court is of the opinion that this matter should be resolved as set forth below.

FACTS

On September 19, 1996, at approximately 1:40 p.m., United States Customs Service ("USCS") Special Agent Gerardo Pineda ("Pineda") received information from a confidential informant ("CI") who stated that he had seen tape-wrapped bundles in the trunk of a silver-gray Chevrolet Lumina (the "Lumina"). The CI was of the opinion that the tape-wrapped bundles contained some type of narcotic drugs. Pineda relayed this information to Special Agent Jeff Pullig ("Pullig") of the Drug Enforcement Administration ("DEA"). The CI followed the Lumina to a residence located at 10910 Pelhem Road (the "Pelhem residence" or "house"), El Paso, Texas, where he was eventually joined by Pineda, and other agents, who maintained continuous surveillance on the residence.

At approximately 2:30 p.m., Pullig met with DEA Special Agents Mike Stokes ("Stokes"), Matt Mayfield ("Mayfield"), Salvador Martinez ("Martinez"), and USCS Special Agent Ofelia Amy Estrada ("Estrada") at the intersection of Montana Avenue and Lee Trevino Drive, in El Paso, Texas. Estrada informed the other agents that an individual ("Suspect 1" or "Tarazon") had driven the Lumina to a residence located at 10910 Pelhem Road. At approximately 2:55 p.m., Pullig and Stokes drove by the Pelhem house and observed that it was a stucco duplex. They observed no activity at that time. At approximately 3:05 p.m., Pullig contacted Pineda by cellular telephone. Pineda informed Pullig that the individual driving the Lumina had arrived at the Pelhem house, and had departed shortly afterwards. USCS agents followed the Lumina when it left the Pelhem residence. Pineda requested that Pullig meet Pineda at the Furr's Supermarket parking lot located at the intersection of Pebble Hills and Lee Trevino Drive. Pullig accompanied Estrada, in Estrada's USCS vehicle, to the Furr's Supermarket so that contact between the USCS and the DEA could be maintained.¹

Pullig and Pineda met at approximately 3:10 p.m. in the Furr's Supermarket parking lot. Pineda told Pullig that the individual driving the Lumina left the Pelhem residence at approximately 2:50 p.m. and drove to the parking lot in which the agents were currently standing. The individual was observed talking into what appeared to be a hand-held radio as he approached the bank of pay phones located on the exterior wall of the Furr's Supermarket. The individual made a phone call from one of the pay phones. At the conclusion of that call, the individual stood near the pay phones and waited. He appeared to be looking for someone. Within minutes, another individual ("Suspect 2" or "Belkotosky") arrived at the pay phones. Both individuals left the pay phone area and approached a white Ford pick-up truck (the "Ford"). The individuals departed the parking lot in the Ford, with Suspect 1 driving and Suspect 2 in the front passenger seat. Pineda observed that the Lumina was left behind in the Furr's parking lot.

USCS Special Agents Cynthia Mandujan ("Mandujan"), Manny Olmos ("Olmos") and Jorge Balderamma ("Balderrama") maintained surveillance on the Ford after it exited the Furr's parking lot. Pineda and USCS Special Agent Mark Miller ("Miller") remained at the parking lot in order to continue surveillance on the Lumina.

Mandujan, Olmos and Balderramma followed the Ford pick-up to a business located at 11045 Rojas Drive # 8, El Paso, Texas. Suspect 2 exited the Ford at that address. The agents then followed Suspect 1, still driving the Ford pick-up, to a residence located at 1903 Bay City Place, El Paso, Texas. Suspect 1 parked the Ford at the curb in front of the residence and waited for approximately twenty minutes before Suspect 2 arrived driving a red Ford Thunderbird bearing license plates issued by the Republic of Mexico. Suspect 2 entered the residence, remained for a brief time, exited the house and entered the Ford pick-up truck being driven by Suspect 1. The red Ford Thunderbird was left parked in the driveway of the Bay City Place residence. Mandujan, Olmos and Balderrama then followed the Ford pick-up to a residence located at 11200 Seaview Avenue, El Paso, Texas. One of the individuals left the Ford and entered the house. The agents were not able to determine which individual went into the house and which remained in the pick-up. Shortly thereafter, the individual exited the residence and returned to the Ford pick-up. The Ford then proceeded, followed by Mandujan, Olmos and Balderrama, to the south side of a Furr's Supermarket parking lot. This was the same parking lot in which the two individuals had rendezvoused earlier, and which still contained the Lumina. Suspect 2 exited the Ford pick-up directly behind the Lumina and headed towards the Lumina.

As Suspect 2 began opening the driver's side door of the Lumina, Mayfield exited Stokes' official vehicle, identified himself as a DEA agent, and ordered Suspect 2 to get down on the ground. Mayfield's orders to Suspect 2 were delivered in an extremely loud voice designed to secure immediate compliance with said orders. During the course of these events, Mayfield's weapon was drawn and he was holding it in what is known as a "cover scan" position.² Suspect 2 raised his hands, dropped a small, dark colored bag that he had been carrying, and laid down on the asphalt parking lot. Agent Stokes (having parked his vehicle) approached the scene and "covered" the suspect with his weapon. Mayfield checked the bag, which had been dropped by Suspect 2, for weapons. After feeling the bag, and then looking inside, Mayfield discovered a Motorola radio, a ring of keys, and some documents.³ Other agents began arriving on the scene. In all, approximately 4 to 5 agents were present around the Lumina at this time. Suspect 2 was advised of his rights, in Spanish, by Olmos. Agent Stokes, with Olmos interpreting, inquired as to whether the keys from the bag belonged to Suspect 2. Suspect 2 responded that he did not know who owned the keys. Stokes then asked if the keys belonged to the Pelhem residence and Suspect 2 stated that he was not aware of any such residence located on Pelhem Road.

As the arrest of Suspect 2 was occurring, Estrada and Pullig were following Suspect 1 as he prepared to depart the Furr's parking lot in the white Ford pick-up truck. As Suspect 1 attempted to exit the parking lot onto Lee Trevino Drive, several agents blocked the parking lot exit with their vehicles. The agents had their weapons drawn, identified themselves as law enforcement agents, and ordered Suspect 1 to place his hands against his vehicle. Again, this was accomplished by shouting the orders at the suspect. Suspect 1 was advised of his rights, in Spanish, by Estrada. One of the agents performed a "pat down" search of Suspect 1. No weapons were found. When asked what he was doing in El Paso, Suspect 1 responded that he was from Phoenix, Arizona, and was in El Paso visiting a friend. He further stated that he had been in El Paso for only a couple of days. Upon being asked the name of his friend, Suspect 1 stated that he did not know the name of the friend or the friend's address. Pineda then asked Suspect 1 what he was carrying in the front pocket of his pants. The response was "keys." Pineda asked to look into the pocket and received permission to do so. Pineda retrieved one set of keys, and then inquired as to the purpose of the keys. Suspect 1 responded that the keys fit the lock at his home in Arizona.

Pineda took the keys from Suspect 1 and, inter alia, asked if he knew Suspect 2. Suspect I denied knowing Suspect 2. After several other questions, Suspect 1 stated that he had just met Suspect 2 at the bank of pay phones on the wall outside the Furr's Supermarket. After receiving permission to call his wife in Arizona, Suspect 1 indicated that he no longer wished to answer any questions. At this time, Pineda apparently took the two sets of keys, one set from each suspect, and compared them. Pineda and Stokes felt that the keys matched. At that point, either Pineda or Stokes gave the keys to Martinez with instructions that Martinez should attempt to discover whether the keys fit the door locks at the Pelhem residence.

At approximately 4:30 p.m., Martinez and a few other agents went to the Pelhem residence. Martinez parked his official vehicle at the curb and walked up the sidewalk to the house. As he approached the house, Martinez noticed a waist-high wrought iron fence which extended between the two garages of the duplex. Martinez passed through an open gate in the fence. The gate was next to the Pelhem residence garage, and was approximately the width of the sidewalk. The gate would have blocked the approach to the residence had it been in a closed position.

Martinez rang the doorbell of the house and then proceeded to knock on a wrought iron security door. The wrought iron security door was set in place in the door jamb and protected the main...